President Trump Issued Two New EOs on Energy Infrastructure and Federal Energy Policy

On April 10, President Trump issued two Executive Orders (EO) relating to the revision of some aspects of federal energy policy and development.

1. The first EO is very comprehensive, affecting many federal agencies and departments, and is entitled “Promoting Federal Infrastructure and Economic Growth.” The EO emphasizes its concern with the need for infrastructure that “ is capable of safely and efficiently transporting these plentiful resources to end users.” To that end, the EO:

(A)     states the general policy that the U.S. Government is to promote private investment in the Nation’s infrastructure by establishing efficient permitting processes and procedures that avoid duplication and result in increased regulatory certainty;

(B)     reviews and revises existing federal guidance and regulations regarding Section 401 of the Clean Water Act (CWA), with particular emphasis on EPA’s guidance document, CWA Section 401 Water Quality Certification, and actions will be taken in accordance with a regulatory schedule set forth in the EO which has as its objective a notice of proposed rulemaking on the Environmental Protection Agency’s (EPA) Section 401 regulations to be published in 12 months, with the final rules to be issued by May 2020;

(C)     confirms that the Department of Transportation (DOT) will review and update existing DOT rules located at 49 C.F.R. Section 193 to recognize the need to have safety rules appropriate to the development of large scale liquified natural gas (LNG) export terminals, with the new rules based on risk-based standards to be proposed in May 2020. Also, the DOT will propose and finalize new rules to allow the transport of LNG in rail tank cars by May 2020;

(D)     confirms that the Secretary of Labor (Secretary) will review, pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), the investment of retirement plans filed with the Department of Labor (DOL) discernable energy industry investments, and will review existing guidance on the fiduciary responsibilities for proxy voting to ensure its guidance will promote long term growth and investment returns;

(E)     confirms that the Departments of Agriculture and Commerce will review their policies for energy infrastructure right-of way renewals and authorizations;

(F)     confirms that the Secretary of Transportation, in consultation with the Secretary of Energy, will provide the President with a report on Barriers to a National Energy Market, emphasizing the barriers to the development of domestic energy development in the New England states, as well as limitations placed on the export of coal, oil, and natural gas through the west coast states;

(G)     identifies opportunities for the availability of intergovernmental assistance to states and local communities will be reviewed by federal agency heads; and

(H)     confirms that the Secretary of Energy will provide, within 6 months, a report of the economic growth of the Appalachian Region, and how its economy can be diversified.

2. The second EO concerns the issuance of permits and authorizations relating to cross-border infrastructure, and is entitled “Order on the Issuance of Permits with Respect to Facilities and Land Transportation Crossings at the International Boundaries of the United States.” While the President has long exercised authority over permits affecting border-crossing energy infrastructure, over the years a welter of rules, guidance, and executive actions have unnecessarily complicated the Presidential permitting process. The process will be revised, and the Secretary of State will be the focal point of this process and will developing new procedures to facilitate these changes.